Americans United - Antonin Scaliahttps://www.au.org/tags/antonin-scalia
enRetaining The Towel: The Religious Right Hasn’t Given Up On Same-Sex Marriage Just Yethttps://www.au.org/blogs/wall-of-separation/retaining-the-towel-the-religious-right-hasn-t-given-up-on-same-sex
<a href="/about/people/rob-boston">Rob Boston</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">The battlefield here is a political map, so the outcome of the same-sex marriage debate will depend on how much ballot box muscle the Religious Right can muster.</div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>Is the Religious Right ready to give up on same-sex marriage? At least one observer thinks so.</p><p>Damon Linker, <a href="http://theweek.com/article/index/272387/its-official-the-religious-right-is-calling-it-quits">writing in <em>This Week</em></a>, cites <a href="http://www.firstthings.com/web-exclusives/2014/11/a-time-to-rend">a short article</a> that appeared in the conservative journal <em>First Things</em> recently as evidence of some kind of turning point in how theocratic groups deal with same-sex marriage.</p><p>The article in question, by R.R. Reno, the editor of <em>First Things</em>, is titled “A Time To Rend.” It cites a pastors’ pledge circulating on the theocratic fringe that urges clergy to stop performing civil marriages.</p><p>Reno writes that the pledge “requires ordained ministers to renounce their long-established role as agents of the state with the legal power to sign marriage certificates.”</p><p>The thinking here is that because the government has debased marriage by extending it to same-sex couples, churches should just bow out.</p><p>The pledge reads in part, “The new definition of marriage no longer coincides with the Christian understanding of marriage between a man and woman. Our biblical faith is committed to upholding, celebrating, and furthering this understanding, which is stated many times within the Scriptures and has been repeatedly restated in our wedding ceremonies, church laws, and doctrinal standards for centuries. To continue with church practices that intertwine government marriage with Christian marriage will implicate the Church in a false definition of marriage. Therefore, in our roles as Christian ministers, we, the undersigned, commit ourselves to disengaging civil and Christian marriage in the performance of our pastoral duties. We will no longer serve as agents of the state in marriage.”</p><p>Linker sees this as an important moment. He speculates, “In some ways, this sounds like a return to the early decades of the 20th century, when fundamentalist Protestants lost an earlier round in the culture war with theological modernists, and responded by withdrawing almost entirely into the shadows, which is where they remained until the late 1970s.”</p><p>I’m not so sure. For starters, <em>First Things</em> (where Linker used to work until he broke with the magazine’s leadership over politics) represents the Religious Right’s attempt at forging an intellectual wing. Founded by the late Richard John Neuhaus, a Lutheran pastor turned Catholic priest, it has always been dense and theoretical in its approach. This is not a publication for the foot soldiers of the Religious Right.</p><p>The people who write for <em>First Things</em> won’t determine the outcome of this fight. The battlefield here is a political map, so the outcome will depend on how much ballot box muscle the Religious Right can muster. Linker asserts that “The religious right arguably has less power within the Republican Party than at any time since before Ronald Reagan's 1980 campaign for president” – an argument I believe is hard to sustain in light of the recent election results.</p><p>Federals appeals courts are currently split over whether states must extend marriage to same-sex couples. Normally, the Supreme Court would step in and issue a definitive ruling – but the justices are not required to do that.</p><p>So consider this “perfect storm” scenario: The Supreme Court continues dodging the issue of marriage equality. A president who opposes same-sex marriage is elected in 2016. A member of the Supreme Court’s liberal faction is forced to retire due to health issues, and a conservative in the mold of Justices Antonin Scalia, Clarence Thomas and Samuel Alito is appointed to the open seat.</p><p>The high court would have a five-member bloc opposed to marriage equality. They would likely rule that states are free to ban same-sex marriage if they want to.</p><p>A ruling like that would certainly spawn a lot of confusion in some states. Thousands of same-sex couples have been legally married in recent years. They have qualified for all the benefits that opposite-sex couples have taken for granted for years. They are parents or legal guardians of children. What would happen to these marriages? Would they be nullified or grandfathered in?</p><p>Some have argued that we can’t turn back now because all these marriages and family arrangements would be thrown into chaos if the high court gave the states the right to ban same-sex marriage by popular vote.</p><p>Indeed, it would be a cruel thing to do. But no one should assume that a right-wing Supreme Court would hesitate to do it. At times, it seems as if Scalia et al. positively thrive on chaos.</p><p>Linker is the author of a well-regarded book on the Religious Right called <em><a href="http://www.amazon.com/Theocons-Damon-Linker-ebook/dp/B000VSW7S4/ref=sr_1_1?ie=UTF8&amp;qid=1416849127&amp;sr=8-1&amp;keywords=theocons">Theocons</a></em>. I have always been impressed by his erudition. But in this case, I think he has overblown the possible impact of a brief article in a relatively obscure right-wing journal.</p><p>I don’t expect many pastors to take the pledge <em>First Things</em> so happily endorses. That’s not what the Family Research Council, the American Family Association or the U.S. Catholic bishops, for that matter, want. They want a political solution to the “problem” of same-sex marriage. And depending on how things shake out at the ballot box two years from now, they just might get it.</p><p>Of course, I could be wrong. The cultural tide on this issue may be so strong that marriage equality is inevitable. In some states, that may be the case. But we’d be naïve to believe that if states like South Carolina, Utah and Montana are given the opportunity to ban same-sex marriage again that they won’t do it. They will. In a heartbeat.</p><p>Bottom line: Yes, there has been plenty of good news lately – including a startling <a href="http://www.slate.com/blogs/outward/2014/06/06/the_national_organization_for_marriage_is_doomed_to_collapse.html">drop in the budget</a> of the National Organization for Marriage. But this issue isn’t settled just yet. Stay tuned.</p></div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/marriage-including-same-sex-marriage">Marriage (including same-sex Marriage)</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/same-sex-marriage">same-sex marriage</a></span>, <span class="field-item"><a href="/tags/damon-linker">Damon Linker</a></span>, <span class="field-item"><a href="/tags/theocons">Theocons</a></span>, <span class="field-item"><a href="/tags/first-things">First Things</a></span>, <span class="field-item"><a href="/tags/rr-reno">R.R. Reno</a></span>, <span class="field-item"><a href="/tags/this-week">This Week</a></span>, <span class="field-item"><a href="/tags/antonin-scalia">Antonin Scalia</a></span></div></div>Fri, 28 Nov 2014 14:46:42 +0000Rob Boston10694 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/retaining-the-towel-the-religious-right-hasn-t-given-up-on-same-sex#commentsDisturbing Dissent: Scalia And Thomas Use AU Graduation-In-Church Case To Blast Separation Yet Again https://www.au.org/blogs/wall-of-separation/disturbing-dissent-scalia-and-thomas-use-au-graduation-in-church-case-to
<a href="/about/people/simon-brown">Simon Brown</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">The reality is that church-state separation cannot exist in the real world without at least some assistance from the courts. The religion clauses of the First Amendment are a mere 16 words long. It’s up to judges to interpret those words. That’s what makes this noble principle so fragile.</div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>It is becoming increasingly clear that the right wing of the U.S. Supreme Court is openly hostile toward the constitutional principle of church-state separation.</p><p>In May, the high court <a href="https://au.org/church-state/june-2014-church-state/featured/greeces-slippery-slope">narrowly ruled</a> in <em>Town of</em> <em>Greece v. Galloway</em>, a case sponsored and litigated by Americans United, that the governing board of Greece, N.Y., may invite Christian ministers to make invocations in the name of God or Jesus Christ at its monthly board meetings – all with the approval of elected officials.</p><p>That appalling opinion was authored by Justice Anthony M. Kennedy and supported by Chief Justice John G. Roberts along with Justices Samuel A. Alito, Antonin Scalia and Clarence Thomas.</p><p>Seemingly unsatisfied with the damage caused by <em>Greece</em>, Scalia and Thomas apparently felt the need to explain once again why they think coercive religious activities on the part of government are not actually the same as an establishment of religion.</p><p>Yesterday, the Supreme Court once again considered an AU-sponsored case – <em>Doe v. Elmbrook School District</em>. The school district had sought review of a July 2012 decision in which a 10-judge panel of the 7th U.S. Circuit Court of Appeals struck down a Wisconsin school district’s use of an evangelical megachurch to hold commencement ceremonies.</p><p>Fortunately most of the high court <a href="https://au.org/media/press-releases/supreme-court-right-to-skip-wisc-graduation-in-church-case-says-americans">had no interest in hearing the case</a>, which meant a victory for AU. But not Scalia and Thomas, who wanted to take the case or order the appeals court to reconsider its decision.</p><p><a href="https://au.org/files/pdf_documents/2014-06-16-Elmbrook_DenialCert-Dissent.pdf">In a seven-page dissent</a>, Scalia asserted that the <em>Elmbrook</em> case is not fundamentally different from <em>Greece</em>. Citing Kennedy’s opinion, Scalia contended that holding a public school graduation in a church is not equivalent to government endorsement of religion.</p><p>In a truly callous moment, Scalia also wrote that the sensitivities of a handful of people are not the concern of the U.S. Constitution.</p><p>“<em>Town of Greece </em>made categorically clear that mere ‘[o]ffense . . . does not equate to coercion’ in any manner…,” he said. “It is perhaps the job of school officials to prevent hurt feelings at school events. But that is decidedly not the job of the Constitution.” </p><p>What Scalia and Thomas failed to grasp is that the plaintiffs in <em>Elmbrook</em> were not just some bunch of overly sensitive Richard Dawkins disciples. In fact, all students and parents who attended graduations at Elmbrook Church were subjected to a barrage of fundamentalist Christian propaganda. Students received their diplomas underneath an immense Christian cross. Parents and children sat in pews filled with Bibles and hymnals, “Scribble Cards for God’s Little Lambs” and church promotional cards that asked them whether they “would like to know how to become a Christian.” The church’s lobby was filled with evangelical pamphlets and postings, many of which were aimed at children and teens.</p><p>That hardly sounds like the passive presence of materials simply left over from church services.</p><p>Like Kennedy in <em>Greece</em>, Scalia also focused on “tradition” as a justification for government-sponsored religious activity. In his <em>Elmbrook</em> dissent, Scalia argued that early public schools used church buildings for school functions.</p><p>“As demonstrated by [<em>State ex rel. Conway </em>v. <em>District Board of Joint School Dist.</em>], the Wisconsin case mentioned above, public schools have long held graduations in churches,” Scalia said. “This should come as no surprise, given that ‘[e]arly public schools were often held in rented rooms, church halls and basements, or other buildings that re­sembled Protestant churches.’”</p><p>In fact, there is no evidence of any consistent historical practice of public schools using churches for graduations. And in any event, just like Kennedy in <em>Greece</em>, Scalia seems to think that the America of today is the same as it was in the 19th and even early 20th centuries. The <em>Conway</em> case did indeed hold that having a public school graduation in a Wisconsin church is not government endorsement of religion.</p><p>(The case also upheld the giving of prayers at public school graduations, a practice the Supreme Court struck down in its 1992 decision <em>Lee v. Weisman.)</em></p><p>That case was decided in 1916, a time when women could not yet vote, African Americans were subjected to Jim Crow laws and a Jewish man, <a href="https://www.jewishvirtuallibrary.org/jsource/anti-semitism/frank.html">Leo Frank</a>, had recently been lynched by a Georgia mob after being falsely accused of rape.</p><p>Does Scalia honestly think nothing has changed in 100 years? And would he advocate for a return to slavery, simply because it was an American “tradition” for more than 200 years?</p><p>The reality is that church-state separation cannot exist in the real world without at least some assistance from the courts. The religion clauses of the First Amendment are a mere 16 words long. It’s up to judges to interpret those words. That’s what makes this noble principle so fragile.</p><p>If it were up to Scalia and Thomas there would be almost no separation at all. It’s pretty frightening knowing that two judges who think that way sit on the most powerful court in the land.</p></div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/use-religious-buildings-schools">Use of Religious Buildings by Schools</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/us-supreme-court-0">U.S. Supreme Court</a></span>, <span class="field-item"><a href="/tags/greece-v-galloway-doe-v-elmbrook">Greece v. Galloway. Doe v. Elmbrook</a></span>, <span class="field-item"><a href="/tags/antonin-scalia">Antonin Scalia</a></span>, <span class="field-item"><a href="/tags/clarence-thomas">Clarence Thomas</a></span>, <span class="field-item"><a href="/tags/conway-v-district-board-of-joint-school-dist">Conway v. District Board of Joint School Dist.</a></span>, <span class="field-item"><a href="/tags/elmbrook-school-district">Elmbrook School District</a></span></div></div>Tue, 17 Jun 2014 18:34:41 +0000Simon Brown10161 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/disturbing-dissent-scalia-and-thomas-use-au-graduation-in-church-case-to#commentsSnapshots From The Supreme Court: Justices Ponder Limits Of Religious Expression In Birth Control Case https://www.au.org/blogs/wall-of-separation/snapshots-from-the-supreme-court-justices-ponder-limits-of-religious
<a href="/about/people/simon-brown">Simon Brown</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>Do for-profit corporations exercise religion? What constitutes a religious enterprise? What did Congress intend when it passed the Religious Freedom Restoration Act (RFRA) in 1993?</p><p>These and many other questions were batted about this morning as the U.S. Supreme Court heard oral arguments in the pivotal combined case of <em>Sebelius vs. Hobby Lobby </em>and <em>Conestoga Wood Specialties vs. Sebelius</em>. </p><p>I was fortunate to sit in the press gallery during the argument, and it seemed skepticism abounded on both sides.</p><p>Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan did not appear to support the primary claim of Hobby Lobby and Conestoga Wood: that secular, for-profit corporations should have a “religious freedom” right to be exempted from offering no-cost birth control to their employees in their employer-provided insurance plans.</p><p>“How does a corporation exercise religion?” Sotomayor asked. “[H]ow do we determine when a corporation has that belief? Who says it? Is it the majority of shareholders? What happens to the minority?”</p><p>All fair questions, and if Hobby Lobby and Conestoga Wood were honest, they would admit there is no easy answer to any of them.</p><p>But the attorney arguing on behalf of the two corporations, former U.S. Solicitor General Paul Clement, said “sincerity of belief” would be a key test in determining whether or not a corporation has a right to exercise religion.</p><p>That response raised an issue that Sotomayor called “dangerous.”</p><p>“That’s the most dangerous piece,” she said. “That’s the one we’ve resisted in all our exercise jurisprudence, to measure the depth of someone’s religious beliefs.”</p><p>But Clement had an answer for that, too.</p><p>“You can test sincerity,” he posited.</p><p>He then gave a far-fetched example of someone who was busted for marijuana possession, but claimed he belonged to “the church of marijuana” and had a “religious liberty” right to smoke pot. It’s silly, but if Hobby Lobby and Conestoga Wood succeed, who is to say that defense would not work in the future?</p><p>Later, Kagan noted correctly that Hobby Lobby and Conestoga Wood are not actually being forced to pay for birth control. Instead, any corporation has the option not to offer any health insurance, which would then trigger an annual tax of $2,000 per employee. The money raised would be used toward insurance coverage for those employees, and at about $26 million per year, would probably cost Hobby Lobby about the same amount as health insurance, Kagan said.</p><p>And that’s when Clement went off the rails. He said just as Hobby Lobby and Conestoga Wood object to paying for birth control, their religious conscience also dictates that they must directly provide health insurance. Simply opting out of offering insurance would be as offensive, Clement suggested, as providing contraceptives.</p><p>Kagan and Ginsburg were clearly flabbergasted by that argument, which neither corporation had previously offered.</p><p>“The provision of health care is not a religious tenet,” Ginsburg said.</p><p>As for the other justices, Antonin Scalia and Samuel A. Alito appeared firmly in Hobby Lobby’s camp, fully accepting the idea that First Amendment rights extend to corporations even at the expense of scores of individuals.</p><p>“Well, what is it about a for-profit corporation that is inconsistent with a free-exercise claim?” Alito asked.</p><p>Said Scalia to U.S. Solicitor General Donald Verrilli: “If – if [Congress] wanted you to balance – balance the interest of the religious objector against the interest of other individuals [who are affected by the objector’s policies], they – they made no reference to that in RFRA at all.” </p><p>Then there was Justice Anthony M. Kennedy, who is typically the swing vote in church-state matters. He didn’t tip his hand today but asked some thoughtful questions.</p><p>“How do you suggest we think about the rights of the employees?” he asked Clement – a key question in this matter. </p><p>Outside the court, hundreds of people fought frigid temperatures and steady, wet snow to voice their opinions on the case. Americans United has been an outspoken advocate for the rights of all Americans to access birth control without religious interference, and much of our staff was there to show support by speaking at rallies and holding signs. AU Executive Director Barry W. Lynn attended the argument and spoke to the media afterwards.</p><p>Hobby Lobby/Conestoga Wood supporters were far fewer, and, based on their signs attacking abortion and Obamacare, some of them seemed confused as to what the case is about. </p><p>Others seemed to think it was a dress-up ball (or perhaps Halloween). Members of the American Society for Tradition, Family and Property – a group of far-right Catholic men who pine for the Dark Ages – circulated through the crowd wearing red capes. One man in a kilt even played the bagpipes for them. (It’s unclear what role bagpipes play in a protest of the birth control mandate.)</p><p>It’s difficult to say how this case will turn out, but the importance of its outcome cannot be overstated. If corporations gain the right to be exempted from one law on religious grounds, there is no telling how many other statutes religious fundamentalists will seek to ignore in the future – all in the name of conscience.</p><p>The court has a difficult task at hand with many issues to consider. We won’t likely know how this shakes out until June, but we will eagerly await the outcome of this case. With so much at stake, this decision will likely have wide ramifications for a very long time.</p><p> </p></div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/reproductive-health-conscience-clauses-for-religious-objectors">Reproductive Health &amp; Conscience Clauses for Religious Objectors</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/religious-freedom-restoration-act">Religious Freedom Restoration Act</a></span>, <span class="field-item"><a href="/tags/hobby-lobby-conestoga-wood-specialties">Hobby Lobby. Conestoga Wood Specialties</a></span>, <span class="field-item"><a href="/tags/paul-clement">Paul Clement</a></span>, <span class="field-item"><a href="/tags/donald-verrilli">Donald Verrilli</a></span>, <span class="field-item"><a href="/tags/sonia-sotomayor">sonia sotomayor</a></span>, <span class="field-item"><a href="/tags/elena-kagan">Elena Kagan</a></span>, <span class="field-item"><a href="/tags/antonin-scalia">Antonin Scalia</a></span>, <span class="field-item"><a href="/tags/samuel-alito">Samuel Alito</a></span>, <span class="field-item"><a href="/tags/anthony-kennedy">Anthony Kennedy</a></span></div></div>Tue, 25 Mar 2014 20:02:18 +0000Simon Brown9753 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/snapshots-from-the-supreme-court-justices-ponder-limits-of-religious#commentsJustice For All: The Supreme Court And The Role Of The Justices’ Religious Beliefshttps://www.au.org/blogs/wall-of-separation/justice-for-all-the-supreme-court-and-the-role-of-the-justices-religious
<a href="/about/people/rob-boston">Rob Boston</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">The religious make-up of the Supreme Court in no way reflects the theological and philosophical diversity of the country. </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>Today’s <em>Washington Post</em> has an <a href="http://www.washingtonpost.com/politics/high-court-with-vocally-devout-justices-set-to-hear-religious-objections-to-health-care-law/2014/03/23/ff54147a-af97-11e3-9627-c65021d6d572_story.html">interesting story</a> about how the personal religious beliefs of members of the Supreme Court might affect their decisions.</p><p>The question is especially relevant now with the high court poised to hear oral arguments tomorrow in a pair of cases that could have far-reaching consequences for what religious freedom means.</p><p>The cases, <em>Sebelius v. Hobby Lobby Stores, Inc.</em> and <em>Conestoga Wood Specialties Corp. v. Sebelius</em>, deal with the contraceptive mandate of the Affordable Care Act. The mandate requires that most secular businesses provide their employees with a health-care plan that includes no-cost contraceptives. Some businesses owners, citing their personal religious beliefs, don’t want to comply.</p><p>If the court rules in favor of Hobby Lobby and Conestoga Wood, it would open the door for more demands that for-profit corporations be excused from secular laws that everyone else has to follow just because the owner has certain religious beliefs.</p><p>Many legal analysts believe, for example, that a broad ruling could make it easier for states to pass laws such as the one recently considered in Arizona that would allow businesses to refuse to serve LGBT clients.</p><p>The religious make-up of the Supreme Court in no way reflects the theological and philosophical diversity of the country. Six justices are Roman Catholic and three are Jews. Some justices, such as Antonin Scalia, aren’t shy in discussing their faith.</p><p>Does this matter? Will it make a difference when the cases are decided?</p><p>It shouldn’t. Supreme Court justices, like all government officials, must acknowledge that they serve a diverse population. They are required to put their religious beliefs aside when rendering judgments.</p><p>Historically, most have been capable of doing so. Former justice William Brennan was a strong supporter of civil liberties, the separation of church and state and the rights of women and minorities. Brennan was also a devout Catholic who attended services every week and received the sacraments.</p><p>The problem, then, isn’t so much religion as it is political ideology. Like Brennan, Scalia is a devout Catholic. Scalia doesn’t rule like Brennan because his ideology is far to the right and he views the Constitution as a document that was set in cement more than 200 years ago and thus can’t change. Brennan looked at that same document and saw a “living Constitution” that contains broad principles that are to be interpreted to address modern issues that the Founding Fathers could never have contemplated.</p><p>The Senate is expected to “advise and consent” on judicial nominees. As AU Executive Director Barry W. Lynn noted in the <em>Post</em> article, questions about nominees’ personal religious views often come up. It’s OK to ask them, but a more fruitful avenue is to grill these candidates on their judicial philosophy and to look at the rulings they have handed down (assuming they’ve spent time on a lower court).</p><p>In most cases, examining how a Supreme Court candidate views our foundational governing document will tell us more than looking at where he or she worships on Saturday or Sunday.</p></div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/reproductive-health-conscience-clauses-for-religious-objectors">Reproductive Health &amp; Conscience Clauses for Religious Objectors</a></span>, <span class="field-item"><a href="/issues/judicial-nominations">Judicial Nominations</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/supreme-court">Supreme Court</a></span>, <span class="field-item"><a href="/tags/antonin-scalia">Antonin Scalia</a></span>, <span class="field-item"><a href="/tags/william-brennan">William Brennan</a></span>, <span class="field-item"><a href="/tags/hobby-lobby">Hobby Lobby</a></span>, <span class="field-item"><a href="/tags/conestoga-wood">Conestoga Wood</a></span>, <span class="field-item"><a href="/tags/birth-control">birth control</a></span></div></div>Mon, 24 Mar 2014 14:44:30 +0000Rob Boston9750 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/justice-for-all-the-supreme-court-and-the-role-of-the-justices-religious#commentsKennedy Conspiracy Theory: TV Preacher Robertson Wonders If Gay Clerks Influenced Supreme Court Justicehttps://www.au.org/blogs/wall-of-separation/kennedy-conspiracy-theory-tv-preacher-robertson-wonders-if-gay-clerks
<a href="/about/people/rob-boston">Rob Boston</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">TV preacher Pat Robertson wonders if Justice Anthony Kennedy was influenced by gay law clerks. </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>I’ve been monitoring the reaction of Religious Right groups to the Supreme Court’s marriage equality rulings. It’s not pleasant, but somebody has to do it.</p><p>I took special interest in the response of TV preacher Pat Robertson. As some of you may know, I’ve long had an interest in the ramblings of the eccentric Virginia televangelist and even <a href="http://www.amazon.com/The-Most-Dangerous-Man-America/dp/1573920533/ref=sr_1_2?ie=UTF8&amp;qid=1372423945&amp;sr=8-2&amp;keywords=the+most+dangerous+man+in+america">wrote a book</a> about him in 1996. (What can I say? A fellow needs a hobby.)</p><p>Alas, Pat’s comments turned out to be a lot of rehashed boilerplate about Sodom and Gomorrah.</p><p>“Ladies and gentlemen,” <a href="http://www.opposingviews.com/i/religion/christianity/pat-robertson-warns-god-may-do-something-drastic-supreme-court-gay-marriage">he intoned</a>, “your liberties are in danger because, read the Bible about Sodom and Gomorrah. That’s where the term comes from, Sodom. Look what happened to Sodom. After a while, there wasn’t any other way, and God did something pretty drastic.”</p><p>Yawn. We’ve heard all of that before. Pat’s been carping about Sodom and Gomorrah for a long time. I was expecting something much better, like perhaps a promise that <a href="https://www.au.org/media/press-releases/rainbow-flags-may-bring-hurricane-to-orlando-and-maybe-a-meteor-warns-tv">a meteor</a> might hit the Supreme Court.</p><p>Robertson did have an interesting theory about the rulings that he outlined earlier in the day on “The 700 Club.” During an interview with Jay Sekulow, a Religious Right attorney who has worked for Pat for years, Robertson demanded to know, “Jay, let me ask you about Anthony Kennedy. Does he have some clerks who happen to be gays?”</p><p>I rarely have sympathy for Sekulow, but one could almost see him internally rolling his eyes as he labored to steer the conversation in another direction.</p><p>Pat loves a conspiracy theory. Therefore, Justice Kennedy must have been influenced by a nest of gay law clerks. In fact, there’s a simpler explanation: Kennedy has, throughout his time on the high court, been sympathetic to LGBT rights. His ruling striking down the Defense of Marriage Act (DOMA) was no surprise. He telegraphed his intentions during the oral argument in March. I was lucky enough to get a seat in the press gallery that day. I’m not a lawyer, but you didn’t have to be to see which way Kennedy was leaning.</p><p>The <em>U.S. v. Windsor</em> <a href="https://www.au.org/files/Windsor.pdf">ruling</a> is in line with Kennedy’s previous decisions in this area. In 1996, the Supreme Court invalidated an amendment to the Colorado Constitution that prohibited any jurisdiction in Colorado from recognizing gay rights. Kennedy wrote the <a href="http://www.oyez.org/cases/1990-1999/1995/1995_94_1039">majority opinion</a>.</p><p>In 2003, the Supreme Court overturned a previous ruling and struck down a Texas law that criminalized consensual sexual acts between same-sex couples. Kennedy <a href="http://www.oyez.org/cases/2000-2009/2002/2002_02_102">wrote this opinion</a> as well.</p><p>I think what confuses Robertson and those who think like him is that Kennedy takes positions like this even though he’s hardly some flaming liberal. He sides with the conservative bloc more often than not, specifically on issues such as health care, gun control and voting rights. On church-state issues, his record is decidedly mixed. Kennedy was part of a court majority that <a href="http://www.oyez.org/cases/1990-1999/1991/1991_90_1014">struck down</a> school-sponsored prayer during graduation ceremonies in 1992 but <a href="http://www.oyez.org/cases/2000-2009/2001/2001_00_1751">voted to uphold</a> Ohio’s private school voucher plan in 2002. </p><p>Kennedy, though, has been more consistent on gay rights. The justice believes that the Constitution’s equal protection and equal liberty provisions mean that the government can’t single out people for ill treatment or discrimination simply because they happen to be gay.</p><p>So, sorry, Pat, but it really didn’t take a gay clerk to persuade Kennedy on DOMA. He was already there.</p><p>If hiring gay law clerks were enough to change a justice’s mind in this area, I’d be happy to send an entire troop over to the office of Justice Antonin Scalia.</p></div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/marriage-including-same-sex-marriage">Marriage (including same-sex Marriage)</a></span>, <span class="field-item"><a href="/issues/descriptions-and-activities-religious-right-groups">Descriptions and Activities of Religious Right Groups</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/pat-robertson">Pat Robertson</a></span>, <span class="field-item"><a href="/tags/jay-sekulow">Jay Sekulow</a></span>, <span class="field-item"><a href="/tags/700-club">700 Club</a></span>, <span class="field-item"><a href="/tags/anthony-kennedy">Anthony Kennedy</a></span>, <span class="field-item"><a href="/tags/antonin-scalia">Antonin Scalia</a></span>, <span class="field-item"><a href="/tags/defense-of-marriage-act">Defense of Marriage Act</a></span></div></div>Fri, 28 Jun 2013 15:08:49 +0000Rob Boston8709 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/kennedy-conspiracy-theory-tv-preacher-robertson-wonders-if-gay-clerks#commentsHigh Noon At The High Court: Supreme Court Takes Up Marriage Equalityhttps://www.au.org/blogs/wall-of-separation/high-noon-at-the-high-court-supreme-court-takes-up-marriage-equality
<a href="/about/people/rob-boston">Rob Boston</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">A lively debate over marriage equality at the U.S. Supreme Court. </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>I was fortunate enough to snag a seat in the press gallery for the oral argument before the U.S. Supreme Court this morning in the Proposition 8 case, <em>Hollingsworth v. Perry</em>.</p><p>Prop. 8 was narrowly approved by California voters in 2008. It added a ban on same-sex marriage to the state constitution. Opponents are challenging it in court, asserting that it violates the rights of gays and lesbians who wish to marry.</p><p>There were huge crowds outside the court sparring over the issue of marriage equality. In the court chambers, the atmosphere was less noisy but still spirited. But the one thing that struck me most about the debate was the elephant in the room that no one wants to acknowledge: religion.</p><p>Gays and lesbians in California found themselves stripped of marriage rights after a campaign spearheaded and funded primarily by the Church of Jesus Christ of Latter-day Saints (the Mormons), the Catholic hierarchy and the Religious Right.</p><p>Opposition to same-sex marriage is grounded in theological terms by the Religious Right and their sectarian allies. Marriage equality, we are told, violates God’s law. Yet this is the United States, and under our Constitution, we are not supposed to base our laws on religion.</p><p>Americans United and its allies <a href="https://www.au.org/media/press-releases/marriage-law-should-not-be-based-on-theology-americans-united-tells-supreme">raised this issue in a friend-of-the-court brief</a>, but the justices were not inclined to wrestle with that question this morning. Still, it was a very interesting argument, and I feel lucky to have heard it live.</p><p>Charles J. Cooper, the attorney arguing for the pro-Prop. 8 forces, asserted that there is an “earnest debate” over “the age-old definition of marriage.” He called the issue “agonizingly difficult” and insisted that the people should have the right to decide the matter, not the judicial system.</p><p>Cooper, like a lot of conservative opponents of marriage equality, linked marriage to procreation. He asserted that “responsible procreation is vital” to society and said same-sex marriage threatens to “sever its historic tie to procreative purposes.”</p><p>This sparked a discussion about whether infertile couples and elderly people could be denied the right to marriage. Cooper’s argument sparked some laughter when Justice Elena Kagan asked if a state could bar marriage to people over 55, assuming that they would not procreate. When Cooper asserted that such couples would not necessarily be infertile, Kagan quipped, “I can assure you…there are not a lot of children coming out of that.”</p><p>Asked directly by Justice Anthony Kennedy if he contends that same-sex marriage is harmful to society, Cooper said no. (Of course, that’s not the line taken by groups like the Family Research Council.) But Cooper did assert that there will be “real-world consequences” and that some of them might be “adverse consequences.” For example, he insisted that it’s unclear if children are harmed by same-sex parenting.</p><p>Theodore B. Olson, U.S. solicitor general in the George W. Bush administration, argued that Prop. 8 should be declared unconstitutional. A long line of court decisions, he argued, makes it clear that marriage is an individual right, not a societal one.</p><p>Olson argued forcefully but ran into trouble almost immediately from Justice Antonin Scalia, who demanded to know when same-sex marriage became a constitutional right. Olson was also questioned aggressively by Chief Justice John Roberts, who at one point seemed to argue that if marriage developed as an institution to benefit society, it doesn’t have to include everyone.</p><p>One of Olson’s better comebacks came when Justice Samuel Alito asked why civil unions were not enough, asserting that marriage “is just a label.” Olson said that would be like offering inter-racial couples an “inter-racial union” and added, “The label of marriage means something. There are certain labels in this country that mean something.”</p><p>In cases dealing with social issues, all eyes and ears tend to be on Justice Kennedy, who is considered a crucial swing vote. Kennedy questioned both attorneys this morning and was careful not to reveal his cards.</p><p>At one point, Kennedy noted that 40,000 children in California are being raised by same-sex parents and told Cooper that he is concerned about them.</p><p>“The voice of those children is important to this debate, don’t you think?” he asked, adding, “They want their parents to have the full recognition [of marriage].”</p><p>But Kennedy also badgered Olson, asserting that his argument was too broad and fretting that the court was being asked to “go into uncharted waters.” At one point, Kennedy even seemed to regret that the case was before the court, musing, “I just wonder if this case was properly granted?” (His remark drew a rebuke from Scalia, who snapped, “We’ve crossed that river!”)</p><p>I’m not an attorney and can’t say what will happen with this case. The court, however, has a way to dodge the case if it wants it. Since California’s state officials declined to defend Prop. 8 in court, the matter was turned over to a private entity.</p><p>If the Supreme Court decides that the private group had no right to act for the state and appeal Prop. 8, the court could toss the case entirely without even ruling on the constitutionality of same-sex marriage. If this happens, a lower court decision striking down Prop. 8 will go back into effect – but the ruling will be limited to California.</p><p>That would give the justices the option of avoiding a decision that sets a national precedent, something several of them seemed uneasy about doing. Some justices even asserted that same-sex marriage is too new of a concept to be before the high court.</p><p>If the court takes this avenue to avoid the issue, the question of the constitutionality of same-sex marriage will have to wait for another day.</p><p>P.S. Audio of the argument can be found <a href="http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=12-144">here</a>.</p></div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/marriage-including-same-sex-marriage">Marriage (including same-sex Marriage)</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/supreme-court">Supreme Court</a></span>, <span class="field-item"><a href="/tags/anthony-kennedy">Anthony Kennedy</a></span>, <span class="field-item"><a href="/tags/antonin-scalia">Antonin Scalia</a></span>, <span class="field-item"><a href="/tags/samuel-alito">Samuel Alito</a></span>, <span class="field-item"><a href="/tags/elena-kagan">Elena Kagan</a></span>, <span class="field-item"><a href="/tags/same-sex-marriage">same-sex marriage</a></span>, <span class="field-item"><a href="/tags/family-reasearch-council">Family Reasearch Council</a></span>, <span class="field-item"><a href="/tags/california">California</a></span>, <span class="field-item"><a href="/tags/mormons">Mormons</a></span>, <span class="field-item"><a href="/tags/prop-8">Prop 8</a></span></div></div>Tue, 26 Mar 2013 18:39:16 +0000Rob Boston8164 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/high-noon-at-the-high-court-supreme-court-takes-up-marriage-equality#commentsMass Mess: Bishops Use Church Service To Lobby Supreme Court https://www.au.org/blogs/wall-of-separation/mass-mess-bishops-use-church-service-to-lobby-supreme-court
<a href="/about/people/simon-brown">Simon Brown</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">It’s a shame that the justices allow the bishops to play their lobbying game by attending the mass.</div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>The justices of the U.S. Supreme Court tied a record last week but that’s not something they should be proud of.</p><p>On Sept. 30, six members of the high court attended the annual “Red Mass,” a special church service for the legal profession held by the Roman Catholic Archdiocese of Washington, D.C.</p><p>In attendance at the Cathedral of St. Matthew the Apostle were Chief Justice John G. Roberts and Justices Stephen Breyer, Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Elena Kagan. Roberts, Scalia, Kennedy and Thomas are Catholic; Breyer and Kagan are Jewish.</p><p>CNN reported that the high court’s showing last week <a href="http://www.cnn.com/2012/09/30/politics/fea-scotus-red-mass/index.html">tied the attendance record for justices at the mass</a>, set in 2009.</p><p>The service, which is named because of the red vestments worn by the officiants, is held annually on the Sunday before the Supreme Court begins its new term, which is the first Monday in October. <a href="http://www.au.org/blogs/wall-of-separation/red-mass-mandate-archbishop-advises-high-court-justices-about-religion-and">In previous years</a>, prelates have used the occasion to berate the justices on issues like abortion, same-sex marriage and public funding of religious schools.</p><p>(It’s worth noting that Justice Ruth Bader Ginsburg, who is Jewish, stopped attending the mass because of comments made one year that were strongly anti-abortion.)</p><p>This year, the mass was led by Timothy P. Broglio, archbishop for the military services. He stopped short of making direct references to controversial topics like abortion, but he did call on attendees to use their faith to guide their decisions. </p><p>Broglio said people should be “instruments” of a “new evangelization.” </p><p>“The faith we hold in our hearts must motivate the decisions, the words, and the commitment of our everyday existence,” Broglio said. “That existence is extraordinary, because it is infused with divine grace. St. Thomas More said that he died the good servant of the King, but the faithful servant of God first. We, too, are faithful citizens only when we embrace the fullness of the principles of our faith and allow them to enliven and fortify our contributions to the life of the nation.”</p><p>No judges, least of all those on the Supreme Court, should be making decisions based on their personal faith. They should be basing them on the Constitution and sound, legal reasoning.</p><p>Americans United Executive Director Barry W. Lynn told CNN that the mass gives the Catholic hierarchy unparalleled access to the justices, and that’s simply inappropriate.</p><p>“There is one purpose to have this,” Lynn said. “It is to make clear…just what the church hierarchy feels about some of the very issues that are to come before the court. That is just wrong. And it is wrong for members to go – not illegal – but wrong for the archdiocese to promote and encourage this event.”</p><p>It may not be illegal for the justices to attend the Red Mass, but that doesn’t mean they should. The Catholic hierarchy is always trying to influence laws and public policy in the United States, and this is just another way for them to do that. It’s a shame that the justices allow the bishops to play their lobbying game by attending the mass.</p><p>We can only hope that next year none of the justices will attend the mass, which would be a record they can boast about.</p></div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/lobbying-by-churches-and-religious-groups">Lobbying by Churches and Religious Groups</a></span>, <span class="field-item"><a href="/issues/other-issues-regarding-churches-and-politics">Other Issues regarding Churches and Politics</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/ruth-bader-ginsburg">Ruth Bader Ginsburg</a></span>, <span class="field-item"><a href="/tags/red-mass">Red Mass</a></span>, <span class="field-item"><a href="/tags/antonin-scalia">Antonin Scalia</a></span>, <span class="field-item"><a href="/tags/elana-kagan">Elana Kagan</a></span>, <span class="field-item"><a href="/tags/john-g-roberts">John G. Roberts</a></span>, <span class="field-item"><a href="/tags/stephen-breyer">Stephen Breyer</a></span>, <span class="field-item"><a href="/tags/clarence-thomas">Clarence Thomas</a></span>, <span class="field-item"><a href="/tags/timothy-p-broglio">Timothy P. Broglio</a></span></div></div>Tue, 02 Oct 2012 18:26:12 +0000Simon Brown7609 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/mass-mess-bishops-use-church-service-to-lobby-supreme-court#commentsImpaired Judgment: Justice Scalia Just Doesn’t Know When To Stop Talkinghttps://www.au.org/blogs/wall-of-separation/impaired-judgment-justice-scalia-just-doesn%E2%80%99t-know-when-to-stop-talking
<a href="/about/people/rob-boston">Rob Boston</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">What’s really bugging Justice Antonin Scalia is that many colleges, including Catholic ones, welcome gay people these days.</div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>It didn’t get much attention, but Supreme Court Justice Antonin Scalia gave an interesting address recently at a Catholic university in Pittsburgh.</p>
<p>Scalia <a href="http://www.pittsburghlive.com/x/pittsburghtrib/news/pittsburgh/s_758611.html">spoke at an event</a> marking the 100th anniversary of Duquesne University Law School. It was the usual lament from the ultra-conservative justice: American society is going hell because not enough people agree with Scalia.</p>
<p>"Our educational establishment these days, while so tolerant of and even insistent upon diversity in all other aspects of life, seems bent on eliminating diversity of moral judgment – particularly moral judgment based on religious views,” Scalia opined.</p>
<p>Oh, really?</p>
<p>Admittedly, it has been a long time since I’ve been in college, but I recall a pretty robust experience with lots of different points of view represented, including plenty of religious ones. Student-run religious clubs were common, and I was invited to Bible studies and other religious events on more than one occasion. Every spring, a roving evangelist would appear in the school’s central quad and commence with the hellfire and damnation. Lots of students argued with him, but no one tried to kick him off campus.</p>
<p>I edited the school newspaper and remember a lively discussion over abortion that erupted on the letters page. Plenty of religious viewpoints were brought to bear. Of course, we also discussed religion freely in our classrooms, just as we discussed philosophy and ethics. Naturally the school didn’t take a point of view when it came to faith. This was a public institution, after all.</p>
<p>Here’s what’s really bugging Scalia: Many colleges, including Catholic ones, welcome gay people these days. He complained about schools that require student clubs that receive university support and backing to be open to all students, even gays.</p>
<p>“I hope this place will not yield – as some Catholic institutions have – to this politically correct insistence upon suppression of moral judgment, to this distorted view of what diversity in America means,” Scalia said.</p>
<p>My guess is it already has. Duquesne is like a lot of private religious universities these days: It’s partially a ward of the state. These schools have taken so much government money in the form of federal grants and loans to students that they’ve watered down the religiosity. They admit members outside their own faith and don’t push prayer on anyone.</p>
<p>There are reasons other than federal aid why this has happened. The competition for students these days is fierce. (Trust me on this. My daughter is a high school senior.) Most colleges and universities no longer desire to serve an insular community. After all, the number of young people burning to attend an institution of higher education that pushes a narrow brand of faith 24/7 is limited. (Want to <a href="http://www.duq.edu/apply/requirements.cfm">apply to Duquesne</a>? You need good test scores, a personal essay and $50. There are no religious requirements.)</p>
<p>I was also struck by <a href="http://www.post-gazette.com/pg/11267/1177378-100.stm">this line</a> from Scalia’s speech: “The Rule of Law is second only to the Rule of Love. The here and now is less important than the hereafter.”</p>
<p>Oh, I don’t know. Sure, a lot of people wonder what happens after death – but there are numerous opinions on that. When he’s on the bench deciding cases that affect 300 million people of various religions and philosophies, I’d rather see Scalia stick to the Rule of Law and focus on the here and now first and foremost. That’s where the cases are coming from, after all.</p>
<p>Finally, I note that Scalia went off on a tear about a controversy at Catholic University in Washington, D.C., where a D.C. resident is suing over the school’s new ban on coed dorms, claiming it violates D.C.’s Human Rights Act.</p>
<p>This case is pending in the courts, and the man who brought it, George Washington University Law School Professor John Banzhaf, <a href="http://blogs.wsj.com/law/2011/09/26/justice-scalia-takes-sides-in-same-sex-dorm-dispute/">told the <em>Wall Street Journal</em></a> he was “astonished that a justice of the nation’s highest court would single out and pre-judge a legal proceeding which could set an important precedent, and could one day even come before the U.S. Supreme Court.”</p>
<p>Banzhaf is right – and Scalia ought to know better. In 2003, Scalia has to recuse himself from a case challenging “under God” in the Pledge of Allegiance because he had earlier given a speech to a Knights of Columbus rally in Virginia during which he asserted that the Framers of the Constitution didn't intend to “exclude God from the public forums and from political life.”</p>
<p>When is this guy going to learn to keep his mouth shut?</p>
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<p><a href="http://blogs.wsj.com/law/2011/09/26/justice-scalia-takes-sides-in-same-sex-dorm-dispute/"><br /></a></p>
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<p> </p>
</div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/other-privacy-issues-including-end-of-life-matters-etc">Other Privacy Issues (including end-of-life matters, etc.)</a></span>, <span class="field-item"><a href="/issues/religion-public-schools-and-universities">Religion in Public Schools and Universities</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/antonin-scalia">Antonin Scalia</a></span>, <span class="field-item"><a href="/tags/duquesne-university">Duquesne University</a></span>, <span class="field-item"><a href="/tags/john-banzhaf">John Banzhaf</a></span>, <span class="field-item"><a href="/tags/pittsburgh">Pittsburgh</a></span>, <span class="field-item"><a href="/tags/supreme-court">Supreme Court</a></span></div></div>Wed, 28 Sep 2011 15:21:14 +0000Rob Boston6067 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/impaired-judgment-justice-scalia-just-doesn%E2%80%99t-know-when-to-stop-talking#commentsRed Mass Mandate: Archbishop Advises High Court Justices About Religion And Government https://www.au.org/blogs/wall-of-separation/red-mass-mandate-archbishop-advises-high-court-justices-about-religion-and
<a href="/about/people/bathija">Sandhya Bathija</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">The fact that the mass goes on almost every year just as the high court is coming back in session is no coincidence.</div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>Yesterday morning, I attended the Red Mass here in Washington along with five Supreme Court justices and Vice President Joe Biden. Okay, we weren’t in the same pew – they were in the front rows; I wasn’t.</p>
<p>But all of us heard Archbishop J. Augustine Di Noia, an American who now works at the Vatican, give a homily that instructed those in attendance on how they should feel about same-sex marriage, abortion and the dire threat of “humanism.”</p>
<p>This was my third visit to the Red Mass, which for more than 50 years has been held just before the Supreme Court comes back into session in October. In the past, the Sunday service at the Cathedral of St. Matthew the Apostle has <a href="http://blog.au.org/2009/10/05/critical-mass-justices-gather-in-dc-for-special-religious-service/">provided a rich opportunity</a> for the Catholic hierarchy to lobby the justices on controversial issues, and this year was no exception.</p>
<p>Di Noia, a Dominican theologian who now serves as secretary of the Congregation for Divine Worship and the Discipline of the Sacraments, has been outspoken about these issues before. In a December 2009 <a href="http://www.adoremus.org/1209EucharisticAdoration.html">essay for the <em>Adoremus Bulletin</em></a>, for example, he blasted “the emergence of an ideology of evil” that “inspires certain political leaders and even some democratic parliaments to initiate projects that are contrary to the identity and mission of the family, and, what is worse, contrary to the dignity of human life itself.” (That’s church-speak for opposition to abortion rights, civil marriage for same-sex couples and other policies that transgress Catholic doctrine.)</p>
<p>Di Noia also has a warm relationship with the Religious Right. In 1994, he joined with Chuck Colson, Richard Land, Pat Robertson and others in signing “Evangelicals and Catholics Together.” That document was intended to paper over long-standing theological differences between conservative Protestants and Catholics and pave the way for common cause on political projects undermining church-state separation, reproductive choice and gay rights and advancing voucher aid to religious schools and more religion in public schools.</p>
<p>That’s why it didn’t come as much of a surprise that Di Noia would use his opportunity at the Red Mass pulpit to nudge his powerful congregants toward the church’s official position on abortion, gay rights and the place of religion in establishing government policy. After all, he had an audience that included Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia, Stephen Breyer and Clarence Thomas.</p>
<p>“Positive law,” he said, “rests on certain principles the knowledge of which constitutes nothing less than participation in the divine law itself: the pursuit of the common good through respect for the natural law, the dignity of the human person, the inviolability of innocent life from conception to natural death, the sanctity of marriage, justice for the poor, protection of minors, and so on.</p>
<p>Later, he argued that “the democratic state does not so much <em>confer</em> the most fundamental human rights and the duties of citizenship as <em>acknowledge</em> their existence and source in a power beyond the state, namely in God himself.”</p>
<p>Di Noia claimed that democratic societies are in danger of adopting the view that “man can find happiness and freedom only apart from God.”</p>
<p>“This exclusive humanism,” he said, “has been exposed as an anti-humanism of the most radical kind. Man without God is not more free but surely in greater danger,” adding that “the eclipse of God leads not to greater human liberation but to the most dire human peril. That innocent human life is now so broadly under threat has seemed to many of us one of the many signs of this growing peril.”</p>
<p>When you cut through the theological fog, DiNoia’s bottom line is this: abortion should be banned, gay people should be denied marriage rights and governmental policy should be based on religiously grounded concepts.</p>
<p>The archbishop didn’t deliver his views that bluntly because it might have caused a stir – and a political backlash. Justice Ruth Bader Ginsberg stopped attending the Red Mass a few years ago when a prelate blasted away against abortion rights a little too vigorously.</p>
<p>The fact that the mass goes on almost every year just as the high court is coming back in session is no coincidence. It’s apparent that the Catholic hierarchy uses this event as a way to try to direct governmental policy within the context of a worship service.</p>
<p>The U.S. Constitution separates religion and government, and the courts have the responsibility of upholding that principle. The Red Mass certainly doesn’t bolster that constitutional concept. Let’s just hope that this Supreme Court term we have justices who do.</p>
</div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/abortion">Abortion</a></span>, <span class="field-item"><a href="/tags/antonin-scalia">Antonin Scalia</a></span>, <span class="field-item"><a href="/tags/archbishop-j-augustine-di-noia">Archbishop J. Augustine Di Noia</a></span>, <span class="field-item"><a href="/tags/clarence-thomas">Clarence Thomas</a></span>, <span class="field-item"><a href="/tags/john-roberts">John Roberts</a></span>, <span class="field-item"><a href="/tags/red-mass">Red Mass</a></span>, <span class="field-item"><a href="/tags/religion-and-politics">Religion and politics</a></span>, <span class="field-item"><a href="/tags/same-sex-marriage">same-sex marriage</a></span>, <span class="field-item"><a href="/tags/sameul-alito">Sameul Alito</a></span>, <span class="field-item"><a href="/tags/stephen-breyer">Stephen Breyer</a></span>, <span class="field-item"><a href="/tags/supreme-court-0">the Supreme Court</a></span>, <span class="field-item"><a href="/tags/us-supreme-court">The U.S. Supreme Court</a></span></div></div>Mon, 04 Oct 2010 19:49:10 +0000Sandhya Bathija2471 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/red-mass-mandate-archbishop-advises-high-court-justices-about-religion-and#commentsA Cross – The Great Divide: Justices Seem Split On Calif. Religious Symbol Casehttps://www.au.org/blogs/wall-of-separation/a-cross-%E2%80%93-the-great-divide-justices-seem-split-on-calif-religious-symbol
<a href="/about/people/rob-boston">Rob Boston</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">It seems to me that Congress was clearly trying to find a way to keep this cross on federal land. </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>I spent the morning at the Supreme Court attending oral arguments in <em>Salazar v. Buono</em> – a case focusing on a cross on display in the Mojave National Preserve in California.</p>
<p>I'm not going to pretend I understand all of the ins and outs of this <a href="http://www.au.org/media/church-and-state/archives/2009/09/a-cross-the-court-and-the.html">complex case</a> because I'm not a lawyer. I rely on AU's legal team to do that. But I did garner a few impressions from the argument.</p>
<p>First of all, it's quite possible this case will not be settled on traditional church-state grounds. In fact, there was surprisingly little talk about whether the presence of the cross in the middle of a federal preserve amounts to an unconstitutional "establishment" of religion.</p>
<p>Instead, several of the justices veered off into a discussion over a land swap Congress mandated in an effort to keep the cross up. In an effort to save the cross, Congress passed a special law declaring the cross a national memorial and transferring ownership of the land to a private group, the Veterans of Foreign Wars (VFW). There was a lot of talk about how that action affected a court injunction ordering that the cross be removed.</p>
<p>Thus, it's possible the high court could decide this case on <a href="http://www.washingtonpost.com/wp-dyn/content/article/2009/10/07/AR2009100700171.html">narrow technical grounds</a> and perhaps even kick it back to a lower court.</p>
<p>There was also a lot of talk about whether the land transfer is legitimate. U.S. Solicitor General Elena Kagan, who argued the case on behalf of the federal government, insisted that if the land transfer is upheld, the federal government would no longer have anything to do with the land the cross sits on and would not be in violation of a court injunction.</p>
<p>I don't buy it – and some justices seemed skeptical as well. Justice Ruth Bader Ginsberg pointed out the VFW is required to keep some type of war memorial on the property, which means the government still has a stake in what happens on this land.</p>
<p>It seems to me that Congress was clearly trying to find a way to keep this cross on federal land. Its motivation was purely religious, and that alone should be enough to declare the act a violation of church-state separation.</p>
<p>Some justices did ask on-point questions about separation of church and state. Justice John Paul Stevens wanted to know if there is any other national memorial that consists solely of a religious symbol. (There is not.)</p>
<p>But on the other hand, Justice Antonin Scalia stated more than once that a cross is not necessarily a religious symbol and it can represent all veterans. He even called the claim that the cross does not represent all veterans "an outrageous conclusion."</p>
<p>Peter J. Eliasberg, the American Civil Liberties Union attorney who argued the case, had a nifty reply to that. "I've been in Jewish cemeteries," Elias said. "There is never a cross in a Jewish cemetery."</p>
<p>Americans United Executive Director Barry W. Lynn also rebuked Scalia.</p>
<p>During a press conference on the portico of the Supreme Court after the argument, Lynn said, "The cross in Mojave Reserve has no historic significance, it has no secular significance; it is a powerful symbol of the dominant religion in this country and, as such, it has no business being in the Mojave Preserve.</p>
<p>"There is not one reasonable person," he continued, "who drives on those roads and sees this cross on one acre who doesn't think that that acre is controlled -- like the 1.6 million other acres -- by the federal government for people of all faiths, no faiths and people of all ideological persuasions."</p>
<p>At the end of the hour, both attorneys had been thoroughly grilled, with every justice asking at least one question (expect Clarence Thomas, of course). Justice Sonia Sotomayor, the newest member of the court, was an active participant, and while it's always dangerous to read too much into questions from the bench, I'm hopeful she's leaning our way.</p>
<p>I caught up with several other AU staffers outside the court after the argument. Americans United did a friend-of-the-court <a href="http://www.au.org/media/press-releases/archives/2009/08/salazar-brief.pdf">brief </a>in the case, and Barry was taking questions from the media. It was interesting to listen in on the different conversations going on as various observers tried to guess what the court may do with this case.</p>
<p>[caption id="attachment_2188" align="aligncenter" width="500" caption="Barry Lynn, center, speaking at the Supreme Court. At left, NPR's Nina Totenberg, and at right, NBC's Pete Williams. (Photo by Maria Matveeva)"]<a href="http://blog.au.org/wp-content/uploads/2009/10/img_3669-barry-lynn_800px.jpg"></a>[/caption]</p>
<p>I overheard one especially interesting tidbit: Religious Right groups have been insisting that if the ACLU wins this case, it will open the door to attacks on grave sites at places like Arlington National Cemetery. It's an offensive argument and one anchored in fear-mongering.</p>
<p>Groups like the ACLU and Americans United support the right of families to choose any religious symbol for a private grave site. Americans United even <a href="http://www.au.org/media/church-and-state/archives/2007/06/pentacle-quest-s.html">went to court</a> on behalf of the family of a Wiccan solider to defend this right.</p>
<p>Asked about this issue, attorney Kelly Shackelford of the Liberty Legal Institute, a group that represents veterans in this case, finally admitted that it's not likely to happen.</p>
<p>So what's next?</p>
<p>The Supreme Court will issue its ruling sometime before the end of June, so stay tuned.</p>
<p>P.S.: Barry Lynn will be discussing the case on CNN's "Lou Dobbs Tonight" this evening at 7 p.m. Eastern time. Tune in if you can.</p>
</div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/religious-mottos-pledges-and-resolutions-outside-schools">Religious Mottos, Pledges and Resolutions (outside schools)</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/antonin-scalia">Antonin Scalia</a></span>, <span class="field-item"><a href="/tags/courts">In the Courts</a></span>, <span class="field-item"><a href="/tags/kelly-shackelford">Kelly Shackelford</a></span>, <span class="field-item"><a href="/tags/mojave-desert">Mojave Desert</a></span>, <span class="field-item"><a href="/tags/religious-symbols">religious symbols</a></span>, <span class="field-item"><a href="/tags/salazar-v-buono">Salazar v. Buono</a></span>, <span class="field-item"><a href="/tags/supreme-court">Supreme Court</a></span></div></div>Wed, 07 Oct 2009 18:01:34 +0000Rob Boston2027 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/a-cross-%E2%80%93-the-great-divide-justices-seem-split-on-calif-religious-symbol#comments